Comment: Approximately 23
respondents commented that promulgating this regulation is a waste
of time and money because it will be struck down by the federal
courts, like the two prior attempts before it.
Efficacy of the Rulemaking.
The final rule ensures that the authorization procedures for noncommercial
group uses comply with First Amendment requirements while providing a reasonable
administrative framework for addressing the significant governmental interests
identified in the rule. The Department has structured this rule very differently from
the 1984 rule that was struck down in United States v. Israel and United States v.
Rainbow Family. Those courts held that the 1984 rule on its face singled out expressive
conduct and required that it be treated differently from other activity; lacked clear
and objective standards for evaluating applications for expressive activities; and
lacked procedural safeguards required by constitutional law. The court in United States
v. Rainbow Family invalidated the 1988 version because the agency had failed to show
good cause under the APA for adopting an interim rule without prior notice and comment.
In contrast, this final rule establishes a single regulatory category that includes
expressive and non-expressive activities; applies the same specific, content-neutral
evaluation criteria to all applications in that category; and contains all the
procedural safeguards required by case law. Rather than publish an interim rule that
goes into effect upon publication but before comments are received and analyzed, the
agency published a proposed rule for notice and comment, and the Department is
publishing a final rule incorporating the analysis of timely received comments. The
final rule does not go into effect until 30 days after it is published. In promulgating
this rule, the Department has meticulously complied with all requirements of the APA.
Consequences of Noncompliance
Listing of Comments
FS Regulation Page